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Second draft halted by party differences - Constitution Watch
Veritas
May 19, 2012

Preparation of Second Draft Halted by Party Differences

Latest Setback

The Co-chairs Forum failed in their preparations for getting the second draft to the lead drafters. The “Forum”, consisting of the three COPAC co-chairs and six expert advisers, two nominated by each of the three GPA political parties, met on Wednesday 16th and Thursday 17th May to examine the comments on the revised first draft received from the political parties. The plan was that they would then, in the light of the comments, formulate their instructions for the lead drafters to prepare a second draft. They first had to decide how to set about incorporating the political party comments – but they were unable to agree about how to do so. By the end of the meeting they had still not resolved this disagreement on “methodology” and the problem has been referred to the Management Committee, which is due to meet on Monday 21st May. On the same day it will also be considered by the full Select Committee.

The Problems

• MDC-T has essentially approved the revised first draft but made suggestions for minor editing and cleaning-up. It sees no need to re-open issues of substance previously agreed on and embodied in the revised first draft.
• ZANU-PF has rejected the draft, raising major objections on many substantive issues [including such issues as Parliamentary and presidential powers, the proposed National Prosecuting Authority and appointment of judges and security force personnel] and asserting that the draft does not reflect the views of the people submitted during the outreach process and captured in the COPAC National Report. It wants substantial changes made.
• MDC has recorded its reservations about aspects of the draft and said it is so incomplete that it is impossible to make useful comments.

This is a major new impasse. It seems to be far more than a difference of opinion over “methodology”, which is how MDC-T co-chair Douglas Mwonzora described it after the deadlock was declared on Thursday. There is obviously an important question of principle involved in the suggested revisiting or re-opening, at this late stage, of issues of substance which had previously been agreed by ZANU-PF’S representatives on the Select Committee.

The lead-up to this situation is outlined below.

Request for Feedback from Political Parties

At its 30th April meeting the Management Committee decided that:

• copies of the revised first draft be given to the GPA political parties for their comments and these comments be submitted to COPAC
• on receipt of these comments COPAC would prepare instructions for the lead drafters, taking aboard the political parties’ comments and the previously parked issues, such as dual citizenship and the number of Vice-Presidents, which the Management Committee said they had resolved
• the Management Committee would in the meantime would remain seized with the major unresolved issue – devolution.

On 10th May COPAC announced in a press statement signed by all three co-chairs that the consultations mandated by the Management Committee 30th April had been completed and that the “feedback” from the political parties was now available. Accordingly the full Select Committee would meet on Monday 14th May to consider this feedback. Thereafter, a second draft would be completed and submitted to the Management Committee for its review.

Full Select Committee Meeting: Monday 14th May

The full Select Committee met as planned on 14th May. No official COPAC statement was issued, but the co-chairs spoke to the press after the meeting. It emerged from what they said that:

• members of the Select Committee had been supplied with the comments from the political parties, and it had been agreed that the Co-chairs Forum be reconvened to consider the comments from the political parties and decide on the changes that needed to be made to the revised first draft as a result of those comments.
• thereafter the lead drafters would be called back and given the necessary instructions for them to produce the second draft.
• after completion the second draft would be handed to the Management Committee by COPAC.

Comment: There were subsequent State press articles from ZANU-PF apologists levelling fierce criticism against the decision to delegate to the Co-chairs Forum the responsibility of deciding on the alterations needed to the revised first draft as a result of the input from the political parties – clearly believing that the full Select Committee would do a better job of accommodating ZANU-PF objections to the revised first draft and implying a lack of confidence in ZANU-PF co-chair Mangwana and the other ZANU-PF nominees on the Co-chairs Forum.

Lead Drafters Not Called Back

The three lead drafters did not participate in the meetings of the Co-chairs Forum on 16th and 17th May. They will only called back when – or, should that now be “if”? – COPAC’s review of the revised first draft is completed, something that is unlikely to occur in a matter of days. One of the drafters will in any event not be available until the 25th May. With all the new problems – listed above – that were raised during the consultations with the political parties, the lead drafters may not be needed until well after that.

What will be the impact of these new delays

It is becoming increasingly clear that the second draft cannot be completed before the end of May. ZANU-PF at one point gave the end of May as a major deadline for having the final draft constitution ready for a Referendum. For months President Mugabe repeatedly insisted that if the Referendum was not held in May he would call elections without waiting for the new constitution. Recently, however, there have been indications that this stance has been modified. ZANU-PF party spokesman Rugare Gumbo said that the party’s Politburo meeting of 16th May had decided the constitution must be completed “as soon as possible”. He avoided saying that this meant by the end of May and, when referring to elections, merely said that they must be held “this year”. As most of the new problems seem to have been raised by ZANU-PF, it is unclear whether:

• they are going be accept further delays while the problems get ironed out, or
• they are deliberately resurrecting contentious issues thought to have been resolved by COPAC, to ensure the process is so bogged down that they will use the ensuing delay as a justification to go for elections under the present constitution.

Latest COPAC Statement Omitted Crucial Stage

COPAC in their latest press statement of 10th May said that after completion of the Second Draft there will be the Second All Stakeholders’ Conference followed by the Referendum. There was no mention of the fact that Article 6 of the GPA says: within one month of the Second All Stakeholders’ Conference ‘the draft Constitution and the accompanying Report shall be tabled in Parliament ...and debated in Parliament and the debate concluded within one month”. This stage must be taken into account when discussing how much longer the constitution-making process is going to last.

[Note: This pre-Referendum Parliamentary debate is simply to take note of its own Select Committee’s draft constitution and report. This must be clearly distinguished from Parliament’s other function which will come at the very end of the constitution-making process if there is a YES vote in the Referendum. Only in that event will Parliament will have the responsibility of passing the new constitution into law.]

Footnote: What Will the New Constitution Cost?

For COPAC to finish its task

According to COPAC co-ordinator Gift Marunda, COPAC needs another $5 million to complete its part in the constitution-making process, made up as follows: $3 million to meet debts already incurred but still unpaid; and $2 million to cover its remaining expenses before the Referendum. Its total expenditure, including that $5 million, will be $45 million.

Conduct of the Referendum

Estimates for the conduct of the Referendum come to $30 million, but that amount is required by the Zimbabwe Electoral Commission, not by COPAC. [Note: A current Press report suggests, incorrectly, this $30 million will be spent by COPAC.]

Whoever pays for the various stages, the projected total is $75 million to the end of the Referendum stage [this works out at about $1000 per word], although as COPAC budgets have always been exceeded, the total may well be more.

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